Court of Appeal (WA)|2008-09-24|Before: Buss JA

PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD -v- COMPUTER ACCOUNTING AND TAX PTY LTD [2008] WASCA 222 (24 September 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD -v- COMPUTER ACCOUNTING AND TAX PTY LTD [2008] WASCA 222

BETWEEN : PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : COMPUTER ACCOUNTING AND TAX PTY LTD -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [2008] WASC 133

Practice and procedure - Application for suspension order pending appeal - Section 15 Civil Judgments Enforcement Act 2004 (WA) - Power under rules of court and in the court's inherent jurisdiction to grant a stay of execution pending appeal - Death of second appellant - Adjournment of application sought until probate granted - Appeal survives death of second appellant - Adjournment refused - Application dismissed

Supreme Court (Court of Appeal) Rules 2005 (WA) r 3, r 5, r 7, r 43(2)

1 BUSS JA: On 9 July 2008, after a trial in the Supreme Court of action CIV 2265 of 2006, the trial judge, Simmonds J, entered judgment for the respondent who was the plaintiff in the action.

2 The respondent had sought damages for negligent misstatement, deceit and misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and s 10 of the Fair Trading Act 1987 (WA).

3 The learned trial judge ordered the appellants to pay to the respondent the sums of $287,125, $4999.50 and $675,078, and interest on each of those sums. His Honour also ordered the appellants to pay to the respondent its costs of the action.

4 On 25 July 2008, the appellants filed their appeal notice. On 12 August 2008, the respondent filed its notice of respondent's intention. On 1 September 2008, the appellants filed an amended appeal notice.

5 By application dated 25 August 2008, the appellants applied for an order for suspension or a stay of the judgment, pending the hearing and determination of the appeal. Alternatively, the appellants applied for an order that they be given a period of two months, or such other time as this court sees fit, to sell a property situated at 9 and 11 Lacey Street, Perth, to enable them to pay the judgment sum. The appellants' application was supported by an affidavit of the second appellant, Martin Paul Banning, sworn 25 August 2008. The appellants also relied on a supplementary affidavit of the second appellant sworn 26 August 2008.

6 On 28 August 2008, Pullin JA ordered that the judgment of the learned trial judge be suspended until 4 pm on 19 September 2008, subject to the suspension order not prejudicing the authority of a property (seizure and sale) order issued by the Supreme Court in CIV 2265 of 2006 to identify and seize personal property of the appellants as the judgment debtors. The property (seizure and sale) order was referred to by his Honour as a 'Property search and seizure order'. Also, Pullin JA ordered that the appellants' application for a suspension order pending the hearing of the appeal be heard at 10.30 am on 19 September 2008 and he made various programming orders in that regard. The programming orders included an order that the appellants file and serve any additional affidavits in support of their application within seven days, that is, by 4 September 2008. Pursuant to that order, the appellants filed an affidavit of David Abraham Lenhoff, sworn 28 August 2008. The appellants also rely on an affidavit filed today, namely an affidavit of Donald Campbell-Smith, the second appellant's executor, sworn 24 September 2008.

7 By letter dated 9 September 2008, the appellants' solicitors informed the court and the respondent's solicitors that the second appellant had died on 8 September 2008. The letter noted that until such time as an executor was appointed to the second appellant's estate, the solicitors would not be authorised or able to take any further steps in the proceedings on behalf of the estate. The appellants' solicitors requested, in substance, an adjournment of the appellant's application and a stay of the appeal until a grant of probate was made and an executor appointed to the estate.

8 On 11 September 2008, pursuant to r 7(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), I ordered that the hearing listed on 19 September 2008 be vacated.

9 On 19 September 2008, also pursuant to r 7(1), I ordered that the judgment of the learned trial judge be suspended until 4 pm on 24 September 2008, subject to order 3 of Pullin JA's orders dated 28 August 2008, that the suspension not prejudice the authority of the property (seizure and sale) order, and I directed that the appellants' application be listed for hearing before me today at 2.15 pm.

10 Before me today, Mr Stokes appeared for the respondent. Mr Lenhoff appeared for the first appellant and Dr MacMillan for the second appellant. Some issue might be thought to arise as to the right of Dr MacMillan to appear for the second appellant in circumstances where the second appellant has died, and no grant of probate or letters of administration has been made in respect of his estate. I would, however, in any event, have heard from Dr MacMillan in relation to the interests of the second appellant's estate as amicus curiae.

11 Rule 5(1) of the Court of Appeal Rules provides that the Court of Appeal Rules must be read with the Rules of the Supreme Court 1971 (WA). Order 18 r 7(1) of the Rules of the Supreme Court provides, relevantly, that, where a party to an action dies but the cause of action survives, the action shall not abate by reason of the death. By r 5(1) of the Court of Appeal Rules, read with O 18 r 7(1) of the Rules of the Supreme Court, where a party to an appeal dies but the right of appeal survives, the appeal does not abate by reason of the death.

12 In Ryan v Davies Bros Ltd [1921] HCA 53; (1921) 29 CLR 527, Knox CJ, Higgins and Starke JJ held:

As a general rule the death of a party pending appeal does not destroy and end the appeal. It may be continued by appropriate proceedings (532).

Their Honours also held that the right of a personal representative of a party to an action to continue an appeal of that party exists in actions in which the cause of action would not have survived the death of one of the parties.

13 In Blood-Smyth v Carter (1965) 83 WN (Pt 1) NSW 96, after a lessor had appealed by way of stated case to the Supreme Court against dismissal of proceedings to recover possession of premises, he died before the stated case was heard. The Public Trustee applied for leave to enter a suggestion of the death of the appellant, and objection was taken to this. The court overruled the objection and said:

Death ... has not the effect of extinguishing the appeal altogether and we agree with the opinion expressed by Manning J in a comparable situation that the difficulty is created only by an absence of appropriate procedural provisions (98).

The Court of Appeal referred, with approval, to several cases which support a general principle that 'when jurisdiction exists in a case in which apt procedure is not provided by statute, the Court itself must mould a convenient form of procedure ...'. Also see Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 (Hutley JA, Hope and Glass JJA agreeing).

14 In Bogeta, Hutley JA referred, with approval, to the English decision of Cooke v Cooper [1912] 2 KB 248, where an executrix of the holder of a liquor licence who died pending an appeal against the refusal of the renewal of a licence was substituted for the deceased. Cook v Cooper was followed in R v Derby Borough Justices Confirming Authority; Ex parte Blackshaw [1958] 1 QB 36.

15 In Halsbury's Laws of England, 4th ed reissue, vol 37 [1543], it is said:

If an appellant dies his legal personal representative may prosecute the appeal on obtaining an order to carry on the proceedings.

16 In the present case, the appellants' application seeks, as the primary relief, an order for suspension or a stay of the judgment below.

17 By s 15(1)(b) of the Civil Judgments Enforcement Act 2004 (WA), relevantly, a person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to a court that is dealing with an appeal against the judgment. By s 15(3), on such an application the court may only make such an order if there are 'special circumstances' that justify doing so. The principles which govern the exercise of the discretion under s 15 are not materially different from those which apply to an application for a stay of execution before the introduction of the Act. See Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]; Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216 [33]. The power to make a suspension order under s 15 may only be made upon an application by the person against whom a judgment is given and not by the court of its own motion.

18 Rule 43(2)(h) of the Court of Appeal Rules provides that a single judge of the court has jurisdiction to make an 'interim order' in an appeal. The term 'interim order' is defined in r 3(1) to include, relevantly, a suspension order made under s 15 of the Civil Judgments Enforcement Act and an order staying the execution of the primary court's decision.

19 In my opinion, this court has inherent power, in a pending appeal, to order of its own motion, an interim stay of execution of the judgment of the primary court, where the appellant has died and a legal personal representative has not yet obtained a grant of probate or letters of administration, if it is in the interests of justice to make such an order. See Bogeta, (148). Also see the discussion concerning the inherent powers of the Supreme Court in Seaman, Civil Procedure Western Australia, vol 1 [1.0.4] and following.

20 In the present case, I am satisfied that, in relation to the appellants' application, this court has express power, in relation to the first appellant under s 15 of the Civil Judgments Enforcement Act and also under the Court of Appeal Rules, and in relation to the second appellant, inherent power of its own motion, to grant or extend an interim stay of the learned trial judge's judgment if it is in the interests of justice to make such an order.

21 The nature of the criteria which are relevant to the exercise of this court's discretion to grant a stay of execution, pending an appeal, are well established. The applicable principles are summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. Also see Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79, 81 - 87, 89 - 95; Kwa v Bank of Western Australia [2003] WASCA 163 [8] - [9].

22 A stay of execution, pending an appeal, may be granted if the appellant appears to have reasonable prospects of success and there is a real risk that, if a stay is not granted and the judgment debt is paid, the respondent will be unable to repay the money if the appeal is allowed. See Vosebe Pty Ltd t/as Batemans Bay Window and Glass v Bakavgas [2008] NSWCA 55 [18], [21] - [22] and the cases there cited.

23 In the present case, the appellants contend that the existing interim stay of execution should be extended in that, first, the appellants have reasonable prospects of success in their appeal, secondly, the grounds of appeal will allege that the respondent was not the proper plaintiff in the action, and thirdly, an extension of the stay would facilitate the orderly administration of the second appellant's estate and the orderly and proper payment of his creditors.

24 The respondent opposes any extension of the interim stay. It relies on an affidavit of Angela Cecilia Theresa Frigger sworn 23 September 2008. Mrs Frigger is a director of the respondent. She says, relevantly, in relation to the respondent's current financial position, that the total value of the respondent's net assets is about $2,850,043. It has no liabilities except for quarterly GST liabilities.

25 It is difficult, at this stage, to form any view as to the merits of the appeal because the appellants' grounds of appeal, the appellants' case and the respondent's case have not yet been filed. I am willing to assume, for present purposes, without deciding, that the appellants' appeal is brought in good faith and they have at least reasonable prospects of success.

26 I have decided, however, that the current interim stay should not be extended and that the appellants should not be granted the alternative relief they seek in their application.

27 In my opinion, the only proper basis, in the present case, on which the interim stay might be extended is if there was a real risk that the respondent would be unable to repay the judgment sum in the event of the appeal being allowed. I am satisfied, on the basis of the material in pars 7 and 16 to 22 of Mrs Frigger's affidavit, that there is no such risk. Further, in my opinion, even if there is merit in the appellants' contention that the respondent was not the proper plaintiff in the action, that contention would not, in the circumstances, justify an extension of the stay. If the appeal is allowed on that ground, the respondent will be obliged to repay the judgment sum. Also, the fact that an extension of the stay would be conducive to the orderly winding up of the second appellant's estate is not a proper basis, in the present case, for an extension. The right, if any, of the respondent to execute against any particular assets of the estate, either before or after a grant of probate or letters of administration, is a matter to be determined in other proceedings, if a dispute should arise. There is no basis, in the papers, for granting either the primary or the alternative relief sought by the appellants. In arriving at my decision, I have not relied on the material in pars 24 to 37 of Mrs Frigger's affidavit.

28 Accordingly, the appellants' application dated 25 August 2008 will be dismissed.

Judgments Enforcement Act 2004

Court (Court of Appeal) Rules 2005

PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD -v- COMPUTER ACCOUNTING AND TAX PTY LTD [2008] WASCA 222 (24 September 2008)

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PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD -v- COMPUTER ACCOUNTING AND TAX PTY LTD [2008] WASCA 222 (24 September 2008)

Legislation Cited (4)

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